Pitts v. Warden of Lee Correctional Institution

Joseph
F. Anderson, Jr. Columbia, South Carolina United States
District Judge.

I.
Introduction

Kevin
Pitts (“Petitioner” or “Pitts”) filed
his second pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 while confined at Lee Correctional
Institution of the South Carolina Department of Corrections.
Petitioner seeks to vacate his 2006 state convictions of
murder and possession of a weapon during the commission of a
violent crime in the Anderson County Court of General
Sessions. (ECF No. 1). His alleged grounds for relief include
ineffective assistance of counsel, lack of probable cause for
arrest, newly discovered evidence, and prosecutorial
misconduct. Id. Pursuant to 28 U.S.C.
§636(b)(1)(B), and Local Rule 73.02(B)(2)(C) (D.S.C.),
this matter was referred to the Magistrate Judge.

According
to the Rules Governing Section 2254 Cases in the United
States District Courts, the Magistrate Judge thoroughly
examined Pitts' petition to determine if, when liberally
construed, “it plainly appears from the petition and
any attached exhibits that the petitioner is not entitled to
relief in the district court.” SECT 2254 Rule 4.

The
Magistrate Judge assigned to this action[1] then prepared a
thorough Report and Recommendation (“Report”) and
opines that this court should dismiss Pitts' petition for
failure to obtain leave from the Fourth Circuit Court of
Appeals to file a successive petition. The Report sets forth
in detail the relevant facts and standards of law on this
matter, and this court incorporates those facts and standards
without a recitation. Pitts was advised of his right to
object to the Report, which was entered on the docket on
April 13, 2017. (ECF No. 11). Wilson filed objections to the
Report on April 26, 2017. (ECF No. 14). Thus, this matter is
ripe for review.

The
court is charged with making a de novo determination
of those portions of the Report to which specific objections
are made, and the court may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge,
or recommit the matter to the Magistrate Judge with
instructions. See 28 U.S.C. § 636(b)(1).
However, a district court is only required to conduct a
de novo review of the specific portions of the
Magistrate Judge's Report to which an objection is made.
See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b);
Carniewski v. W. Virginia Bd. of Prob. & Parole,
974 F.2d 1330 (4th Cir. 1992). In the absence of specific
objections to portions of the Report of the Magistrate, this
Court is not required to give an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198,
199 (4th Cir. 1983).

II.
Discussion

Petitioner
asserts a single objection to the Report in which he states
that he has newly discovered evidence. (ECF No. 14). However,
Petitioner's objection misses the mark.

As
explained in the Report, Pitts' current petition is
successive and “even if the petitioner has obtained
newly discovered evidence, he still must move in a court of
appeals for an order to authorize the district court to
consider a successive § 2254 petition.” (ECF No.
11 p. 4) (citing 28 U.S.C. § 2244(b); Kelly v. South
Carolina Dep't of Corr., 382 F. App'x 284 (4th
Cir. June 9, 2010)). Therefore, Petitioner must seek
authorization from the United States Court of Appeals for the
Fourth Circuit to file a successive petition for habeas
corpus. Without authorization, this Court is without
jurisdiction to consider a successive petition. See
United States v. Winestock,340 F.3d 200, 205-06 (4th
Cir. 2003).

III.
Conclusion

After
carefully reviewing the applicable laws, the record in this
case, as well as the Report, this court finds the Magistrate
Judge's recommendation fairly and accurately summarizes
the facts and applies the correct principles of law.
Accordingly, the Court adopts the Report and Recommendation,
and dismisses the petition without requiring the respondent
to file a return.

Further,
because Petitioner has failed to make “a substantial
showing of the denial of a constitutional right, ” a
certificate of appealability is DENIED. 28 U.S.C. §
2253(c)(2).[2]

IT IS
...

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